Every year in South Carolina, there is a push by prosecutors, police, MADD, and the media to “fix” the “loopholes” in South Carolina’s DUI laws. There is no loophole. “Loophole” or “technicality” is the rhetoric used by police, prosecutors, and victims advocates when describing constitutional rights or any rights granted to people accused of crimes. South Carolina’s DUI laws are the product of years of negotiations and collaboration between legislators, police, prosecutors, and defense attorneys. They are a balance of the competing needs for DUI enforcement and protection of our citizens’ rights.
The DUI Laws are working as Intended
- In 2014 a Post and Courier article cites the Charleston Chief of Police who provides the example of a woman who they had to charge with public disorderly conduct instead of DUI because she was sitting in her car, the officer never saw her drive the car, and the officer did not have a videotape available. It turns out that South Carolina you must actually be driving a car to be charged with driving under the influence. The woman was arrested, jailed, and charged with what she was actually doing that could be proven – she was drunk in public.
- A 2015 article quotes prosecutors citing examples of cases being thrown out because a suspect’s feet were not visible during the walk and turn test. The walk and turn test is “graded” based on a series of cues, most of which involve the feet. The point is, if you cannot see the person’s feet, there is no evidence of what the person’s feet were doing – it is not helpful to view a person’s legs as the officer tells us their recollection of what the feet were doing.
- A prosecutor cites an example of a case where “it was dark and the driver’s face couldn’t be seen on camera as the officer had the driver close his eyes and touch his nose.” First of all, closing your eyes and touching your nose is not a standardized field sobriety test approved by NHTSA and the officer should not have been administering it in the first place. Furthermore, if the officer is going to use a non-standardized FST, it should be visible on the camera. It may be dark, but the officer’s car is equipped with headlights as well as a camera.
- A legislator complains that a defendant can create their own defense by doing something that takes them off the camera through no fault of the officer. 1) Assuming for the sake of argument that your average driver understands the complexities of DUI law, no judge that I know will permit a defendant to benefit from obstructive conduct during a DUI stop. 2) It is on the officer to ensure that the FST’s are administered properly and that they are recorded. If a defendant moves off camera, move them back on. If they are obstructing the camera purposefully, make sure that it is obvious what they are doing and then abort the tests.
- An article this year cites an Horry County prosecutor who complains about a case where an officer says the defendant failed the eye test (HGN), but the defendant’s face is not visible on the camera. 1) You will never see a defendant’s eyes well enough on the video to confirm or debunk the officer’s testimony about the HGN, and I have never seen a judge dismiss a DUI on this basis. It is critical to be able to see how the officer performs the test, because many officers do not perform the test properly. 2) the prosecutor says, “the video likely wouldn’t hold up in court;” which tells us that the prosecutor has not taken the case to court and likely dismissed the case or reduced the charge before a judge heard the case. The prosecutor goes on to say that “[f]or a case to get thrown out entirely because of that, it really hurts us.” Hurts who? The prosecutor’s office?
There is no Loophole
In cases where the driver is too drunk to drive and where the officer follows the statute, the prosecutor will get a conviction unless they use the law as an excuse to dismiss cases and lighten their case load. When the officer follows the law and the driver is drunk, the prosecutor has competent evidence to use at trial. When the officer does not follow the law and/or the driver is not drunk, the case will get dismissed.
South Carolina’s requirements to 1) have a dashcam equipped and 2) record all FST’s during a DUI stop are designed to provide transparency and to force police to be honest. If you believe that police officers are routinely honest and transparent during traffic stops including DUI arrests, you have never worked in the criminal courts or you are incredibly naive. To put it bluntly, officers routinely lie or exaggerate in their incident reports which they then rely on for their testimony at trial. The videotape requirements are intended to prevent officers from conducting FST’s out of the camera’s view and then lying about the results, and for this reason alone they are necessary.
The DUI law’s videotape requirements is not allowing drunks to get away with drinking and driving. It’s forcing police and prosecutors to actually prove their cases and to do so honestly. It’s not a loophole. It’s the best practice to protect you and I from officers who will lie or exaggerate their testimony to obtain convictions.